_____

CHAPTER 345
______
THE LAW OF CONTRACT ACT
[PRINCIPAL LEGISLATION]
ARRANGEMENT OF SECTIONS
Section

Title
PART I
PRELIMINARY PROVISIONS
1.
2.

Short title.
Construction.
PART II
COMMUNICATION, ACCEPTANCE AND
REVOCATION OF PROPOSALS

3.
4.
5.
6.
7.
8.
9.

10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
22.
23.

Communication, acceptance and revocation of proposals.

Communication, when complete.
Revocation of proposals and acceptances.
Revocation, how made.
Acceptance must be absolute.
Acceptance by performing conditions, or receiving consideration.
Promises, express and implied.
PART III
VOIDABLE CONTRACTS AND VOID AGREEMENTS
What agreements are contracts.
Persons competent to contract.
What is a sound mind for the purposes of contracting.
"Consent" defined.
"Free consent" defined.
"Coercion" defined.
"Undue influence" defined.
"Fraud" defined.
"Misrepresentation" defined.
Effect of agreements induced by coercion, fraud, misrepresentation or
undue influence.
Agreement void where both parties are under a mistake as to matter of
fact.
Effect of mistakes as to law.
Unilateral mistake.
What considerations and objects are lawful and what are not.

24.
25.

26.
27.
28.
29.
30.

Agreements void if considerations and objects are unlawful in part.

Agreement without consideration, is void, unless it is in writing and
registered; or is a promise to compensate for something done; or is a
promise to pay a debt barred by limitation of law.
Agreement in restraint of marriage void.
Agreement in restraint of trade void.
Agreement in restraint of legal proceedings void.
Agreement void for uncertainty.
Agreement by way of wager void.
PART IV
CONTINGENT CONTRACTS

31.
32.
33.
34.
35.
36.

"Contingent contract" defined.

Enforcement of contract contingent on an event happening.
Enforcement of contract contingent on an event not happening.
When event on which contract is contingent to be deemed impossible, if it
is the future conduct of a living person.
A contingent contract.
Agreement contingent on impossible events void.
PART V
PERFORMANCE OF CONTRACTS
Contracts which must be Performed

37.
38.
39.
40.
41.

Obligations of parties to contracts.

Effect of refusal to accept offer of performance.
Effect of refusal of party to perform promise wholly.
Persons by whom promise is to be performed.
Effect of accepting performance from third person.
Joint Liabilities and Rights

42.
43.
44.
45.

Devolution of joint liabilities.

Obligations and liabilities of joint promisors.
Effect of release of one joint promisors.
Devolution of joint rights.
Time and Place for Performance

46.
47.
48.

Time for performance of promise where no application is to be made and

no time is specified.
Time and place for performance of promise where time is specified and no
application is to be made.
Application for performance on certain day to be at proper time and place.

49.
50.

Place for performance of promise where no application to be made and no

place fixed for performance.
Performance in manner or at time prescribed or sanctioned by promisee.
Performance of Reciprocal Promises

51.

57.
58.

Promisor not bound to perform unless reciprocal promisee ready and

willing to perform.
Order of performance of reciprocal promises.
Liability of party preventing event on which contract is to take effect.
Effect of default as to that promise which should be first performed, in
contract consisting of reciprocal promises.
Effect of failure to perform at fixed time in contract.
Agreement to do impossible act, subsequent impossibility or unlawfulness
and related compensation.
Reciprocal promise to do things legal, and also other things illegal.
Alternative promise, one branch being illegal.

59.
60.
61.

Appropriation of Payment
Application of payment where debt to be discharged is indicated.
Application of payment where debt to be discharged is not indicated.
Application of payment where neither party appropriates.

52.
53.
54.
55.
56.

Contracts Which Need Not Be Performed

62.
63.
64.
65.
66.
67.

Effect of novation, rescission and alteration of contract.

Promisee may dispense with or remit performance of promise.
Consequences of rescission of voidable contract.
Obligation of person who has received advantage under void agreement or
contract that becomes void.
Mode of communicating or revoking rescission of voidable contract.
Effect of neglect of promisee.

PART VI
CERTAIN RELATIONS RESEMBLING THOSE CREATED BY CONTRACT
68.
69.
70.
71.
72.

Claim for necessaries supplied to person incapable of contracting, or on

his account.
Reimbursement of person paying money due by another, in payment of
which he is interested.
Obligation of person enjoying benefit of non-gratuitous act.
Responsibility of finder of goods.
Liability of person to whom money is paid or thing delivered by mistake
or under coercion.

PART VII
CONSEQUENCES OF BREACH OF CONTRACT
73.
74.
75.

Compensation for loss or damage caused by breach of contract, etc.

Compensation for breach of contract where penalty stipulated.
Party rightfully rescinding contract entitled to compensation.
PART VIII
INDEMNITY AND GUARANTEE

76.
77.
78.
79.
80.
81.
82.
83.
84.
85.
86.
87.
88.
89.
90.
91.
92.
93.
94.
95.
96.
97.
98.
99.

"Contract of indemnity" defined.

Rights of indemnity-holder when sued, etc.
"Contract of guarantee", "surety", "principal debtor", and "creditor"
defined.
Consideration for guarantee.
Surety's liability.
"Continuing guarantee" defined.
Revocation of continuing guarantee.
Revocation of continuing guarantee by surety's death.
Liability of two persons, primarily liable, not affected by arrangements
between them that one shall be surety on another's default.
Discharge of surety by variance in terms of contract.
Discharge of surety by release or discharge of principal debtor.
Discharge of surety when creditor compounds with, gives time to, or
agrees not to sue, principal debtor.
Surety not discharged when agreement made with third person to give
time to principal debtor.
Creditor's forbearance to sue does not discharge surety.
Release of one co-surety does not discharge others.
Discharge of surety by creditor's act or omission impairing surety's
eventual remedy.
Rights of surety on payment or performance.
Surety's right to benefit of creditor's securities.
Guarantee obtained by misrepresentation invalid.
Guarantee obtained by concealment invalid.
Guarantee on contract that creditor shall not act on it until co-surety joins.
Implied promise to indemnify surety.
Co-sureties liable to contribute equally.
Liability of co-sureties bound in different sums.
PART IX
BAILMENT

100.
101.
102.

"Bailment", "bailor" and "bailee" defined.

Delivery to bailee, how made.
Bailor's duty to disclose faults in goods bailed.

103.
104.
105.
106.
107.
108.
109.
110.
111.
112.
113.
114.
115.
116.
117.
118.
119.
120.
121.
122.
123.

Care to be taken by bailee.

When bailee not liable for loss, etc., of thing bailed.
Termination of bailment by bailee's act inconsistent with conditions.
Liability of bailee making unauthorised use of goods bailed.
Effect of mixture, with bailor's consent, of his goods with bailee's.
Effect of mixture, without bailor's consent, when the goods can be
separated.
Effect of mixture, without bailor's consent, when the goods cannot be
separated.
Repayment by bailor of necessary expenses.
Restoration of goods lent gratuitously.
Return of goods bailed, on expiration of time or accomplishment of
purpose.
Bailee's responsibility when goods are not duly returned.
Termination of gratuitous bailment by death.
Bailor entitled to increase or profit from goods bailed.
Bailor's responsibility to bailee.
Bailment by several joint owners.
Bailee not responsible on redelivery to bailor without title.
Right of third person claiming goods bailed.
Right of finder of goods.
When finder of thing commonly on sale may sell it.
Bailee's particular lien.
General lien of bankers, factors, wharfingers, advocates, and policybrokers.
Bailments of Pledges

124.
125.
126.

"Pledge", "pawnor", and "pawnee" defined.

Pawnee's right of retainer.
Pawnee not to retain for debt or promise other than that for which goods
pledged.
Presumption in Case of Subsequent Advances

127.
128.
129.
130.
131.

Pawnee's right as to extraordinary expenses incurred.

Pawnor's right where pawnor makes default.
Defaulting pawnor's right to redeem.
Pledges by mercantile agents and persons in possession under voidable
contracts.
Pledge where pawnor has only a limited interest.
Suits by Bailees or Bailors against Wrongdoers

132.
133.

Suit by bailor or bailee against wrongdoer.

Apportionment of relief or compensation obtained by such suits.

PART X
AGENCY
Appointment and Authority of Agents
134.
135.
136.
137.
138.
139.
140.
141.

"Agent" and "principal" defined.

Who may employ agent.
Who may be an agent.
Consideration not necessary.
Agent's authority may be express or implied.
Definitions of express and implied authority.
Extent of agent's authority.
Agent's authority in an emergency.
Sub-Agents

142.
143.
144.
145.
146.
147.

When agent cannot delegate.

"Sub-agent" defined.
Representation of principal by sub-agent properly appointed.
Agent's responsibility for sub-agent appointed without authority.
Relation between principal and person duly appointed by agent to act in
business of agency.
Agent's duty in naming such person.
Ratification

148.
149.
150.
151.
152.

Right of person as to acts done for him without his authority and effect of
ratification.
Ratification may be express or implied.
Knowledge requisite for valid ratification.
Effect of ratifying unauthorised act forming part of a transaction.
Ratification of unauthorised act cannot injure third person.
Revocation of Agency

153.
154.
155.
156.
157.
158.
159.
160.
161.

Termination of agency.
Termination of agency, where agent has an interest in subject-matter.
When principal may revoke agent's authority.
Revocation where authority has been partly exercised.
Compensation for revocation by principal or renunciation by agent.
Notice of revocation or renunciation.
Revocation and renunciation may be express or implied.
When termination of agent's authority takes effect as to agent, and as to
third persons.
Agent's duty on termination of agency by principal's death or insanity.

162.

Termination of sub-agent's authority.

Agent's Duty to Principal

163.
164.
165.
166.
167.
168.
169.
170.
171.
172.
173.

Agent's duty in conducting principal's business.

Skill and diligence required from agent.
Agent's accounts.
Agent's duty to communicate with principal.
Right of principal when agent deals, on his own account, in business of
agency without principal's consent.
Principal's right to benefit gained by agent dealing on his own account in
business of agency.
Agent's right of retainer out of sums received on principal's account.
Agent's duty to pay sums received for principal.
When agent's remuneration becomes due.
Agent not entitled to remuneration for business misconducted.
Agent's lien on principal's property.
Principal's Duty to Agent

174.
175.
176.
177.

Agent to be indemnified against consequences of lawful acts.

Agent to be indemnified against consequences of acts done in good faith.
Non-liability of employer of agent to do a criminal act.
Compensation to agent for injury caused by principal's neglect.
Effect of Agency on Contracts with Third Persons

178.
179.
180.
181.
182.
183.
184.
185.
186.
187.
188.
189.

Enforcement and consequences of agent's contracts.

Principal how far bound when agent exceeds authority.
Principal not bound when excess of agent's authority is not separable.
Consequences of notice given to agent.
Agent cannot personally enforce, nor be bound by, contracts on behalf of
principal.
Rights of parties to a contract made by agent not disclosed.
Right of person dealing with agent personally liable.
Consequence of inducing agent or principal.
Liability of pretended agent.
Person falsely contracting as agent not entitled to performance.
Liability of principal inducing belief that agent's unauthorised acts were
authorised.
Effect, on agreement, of misrepresentation or fraud by agent.

PART XI
PARTNERSHIP
Nature of Partnership
190.
191.

"Partnership" and "firm" defined.

Rules for determining the existence of partnership.
Relationship of Partners to One Another

192.
193.
194.
195.
196.
197.
198.
199.
200.

General duties of partners.

Variation by consent of terms of partnership.
Conduct of business and mutual rights and liabilities.
Partnership property.
Accountability of partners for private profits and competing businesses.
When a term for partnership expires.
Introduction of new partners.
Expulsion.
Retirement.
Relationship of Partners to Persons dealing with them

201.
202.
203.
204.
205.
206.
207.
208.
209.
210.
211.

Power of partner to bind the firm.

Partners bound by acts on behalf of the firm.
Liability of partners for debts.
Liability for wrongs and misapplication.
Improper employment of trust property for partnership purposes.
Persons liable by holding out.
Notice to partner to be notice to firm.
Liabilities of incoming and outgoing partners.
Revocation of continuing guarantee by change in firm.
Rights of assignee of share in partnership.
Minors not competent to be partners.
Dissolution of Partnership and its Consequences

212.
213.
214.
215.
216.
217.
218.
219.
220.
221.

Dissolution by expiration or notice.

Dissolution by death, bankruptcy or charge.
Dissolution by illegality of partnership.
Dissolution by court.
Rights of persons against apparent members of the firm.
Partner's right to notice of dissolution.
Continuance of rights and liabilities of partners after dissolution.
Rights of partners as to application of partnership property.
Apportionment of premium where partnership prematurely dissolved.
Rights where partnership dissolved for fraud or misrepresentation.

222.
223.
224.
225.
226.

Right of outgoing partner in certain cases to share profits made after

dissolution.
Retiring or deceased partner's share to be a debt.
Rule for distribution of assets on final settlement of accounts.
Payment of firm debts and of separate debts.
Incorporated partnerships and joint-stock companies.
PART XII
REPEAL AND TRANSITIONAL PROVISIONS

227.
228.

[Disapplication of the Indian Contract Act and amendment of R.L. Cap.

2.]
[Transitional provisions.]

______
CHAPTER 345
_______
THE LAW OF CONTRACT ACT
An Act to provide for the law relating to contracts.
[3rd March, 1961]
Ord. No. 1 of 1961
[R.L. Cap. 433]
Act No. 55 of 1963
PART I
PRELIMINARY PROVISIONS
Short title

Construction Act No.

55 of 1963 Sch.

1.-(1) This Act may be cited as the Law of Contract Act.

(2) Nothing contained in this Act shall effect the provisions of any
written law heretofore in force in Tanzania and not hereby expressly
disapplied or repealed, nor any usage or custom of trade, nor any incident
of any contract not inconsistent with the provisions of this Act.
2.-(1) In this Act, unless the context otherwise requires
(a) when one person signifies to another his willingness to do or
to abstain from doing anything, with a view to obtaining the
assent of that other to such act or abstinence, he is said to
make a proposal;
(b) when the person to whom the proposal is made signifies his
assent thereto, the proposal is said to be accepted, and a
proposal, when accepted, becomes a promise;
(c) the person making the proposal is called the "promisor", and
the person accepting the proposal is called the "promisee";
(d) when, at the desire of the promisor, the promisee or any other
person has done or abstained from doing, or does or abstains
from doing, or promises to do or to abstain from doing,
something, such act or abstinence or promise is called a
consideration for the promise;
(e) every promise and every set of promises, forming the
consideration for each other, is an agreement;
(f) promises which form the consideration or part of the
consideration for each other, are called reciprocal promises;
(g) an agreement not enforceable by law is said to be void;
(h) an agreement enforceable by law is a contract;
(i) an agreement which is enforceable by law at the option of
one or more of the parties thereto, but not at the option of the
other or others, is a voidable contract;

10

(j)

a contract which ceases to be enforceable by law becomes

void.
(2) Notwithstanding the provisions of paragraphs (g) or (j) of
subsection (1) of this section, where any written law in force in Tanzania
on the date on which this Act comes into operation provides that an
agreement (howsoever described), of the kind specified therein, shall not
be enforceable by action unless or until certain requirements therein
specified are complied with, or certain consents are obtained, no such
agreement shall be void by reason only that it is not enforceable by action
under the provisions of that law for want of compliance with any such
requirement or of the obtaining of any such consent.
(3) Nothing in this Act, other than section 23, shall affect any
customary law; and in relation to any matter in which the law applicable
is customary law, the provisions of the said section 23 shall be in addition
to any relevant rule of customary law and the references to a law in the
said section 23 shall be deemed to be references to the Acts of Tanzania.
PART II
COMMUNICATION, ACCEPTANCE AND REVOCATION OF PROPOSALS
Communication,
acceptance, and
revocation of proposals

3. The communication of proposals, the acceptance of proposals,

and the revocation of proposals and acceptances, respectively, are deemed
to be made by any act or omission of the party proposing, accepting or
revoking, by which he intends to communicate such proposal, acceptance
or revocation, and which has the effect of communicating it.

Communication, when
complete

4.-(1) The communication of a proposal is complete when it

comes to the knowledge of the person to whom it is made.
(2) The communication of an acceptance is complete
(a) as against the proposer, when it is put in a course of
transmission to him, so as to be out of the power of the
acceptor;
(b) as against the acceptor, when it comes to the knowledge of
the proposer.
(3) The communication of a revocation is complete
(a) as against the person who makes it, when it is put into a
course of transmission to the person to whom it is made, so
as to be out of the power of the person who makes it;
(b) as against the person to whom it is made, when it comes to
his knowledge.

Revocation of
proposals and
acceptances

5.-(1) A proposal may be revoked at any time before the

communication of its acceptance is complete as against the proposer, but
not afterwards.
(2) An acceptance may be revoked at any time before the
communication of the acceptance is complete as against the acceptor, but

11

not afterwards.
Revocation, how made

Acceptance must be
absolute

6. A proposal is revoked
(a) by the communication of notice of revocation by the
proposer to the other party;
(b) by the lapse of the time prescribed in such proposal for its
acceptance, or, if no time is so prescribed, by the lapse of a
reasonable time, without communication of the acceptance;
(c) by the failure of the acceptor to fulfil a condition precedent
to acceptance; or
(d) by the death or insanity of the proposer, if the fact of his
death or insanity comes to the knowledge of the acceptor
before acceptance.
7. In order to convert a proposal into a promise, the acceptance
must
(a) be absolute and unqualified;
(b) be expressed in some usual and reasonable manner, unless
the proposal prescribes the manner in which it is to be
accepted; and if the proposal prescribes a manner in which it
is to be accepted, and the acceptance is not made in such
manner, the proposer may, within a reasonable time after the
acceptance is communicated to him, insist that his proposal
shall be accepted in the prescribed manner, and not
otherwise, but if he fails to do so he accepts the acceptance.

Acceptance by
performing conditions,
or receiving
consideration

8. Performance of the conditions of a proposal, or the acceptance

of any consideration for a reciprocal promise which may be offered with a
proposal, is an acceptance of the proposal.

Promises, express and

implied

9. In so far as the proposal or acceptance of any promise is made

in words, the promise is said to be express; and in so far as such proposal
or acceptance is made otherwise than in words, the promise is said to be
implied.
PART III
VOIDABLE CONTRACTS AND VOID AGREEMENTS

What
agreements are
contracts

10. All agreements are contracts if they are made by the free consent of
parties competent to contract, for a lawful consideration and with a lawful
object, and are not hereby expressly declared to be void:
Provided that nothing herein contained shall affect any law in force,
and not hereby expressly repealed or disapplied, by which any contract is
required to be made in writing or in the presence of witnesses, or any law
relating to the registration of documents.

12

Persons
competent to
contract

11.-(1) Every person is competent to contract who is of the age of

majority according to the law to which he is subject, and who is of sound mind,
and is not disqualified from contracting by any law to which he is subject.
(2) An agreement by a person who is not hereby declared to be
competent to contract is void.

What is a sound
mind for the
purposes of
contracting

12.-(1) A person is said to be of sound mind for the purpose of making

a contract if, at the time when he makes it, he is capable of understanding it
and of forming a rational judgment as to its effect upon his interests.
(2) A person who is usually of unsound mind, but occasionally of
sound mind, may make a contract when he is of sound mind.
(3) A person who is usually of sound mind, but occasionally of
unsound mind, may not make a contract when he is of unsound mind.

"Consent"
defined

13. Two or more persons are said to consent when they agree upon the
same thing in the same sense.

"Free consent"
defined

14.-(1) Consent is said to be free when it is not caused by

(a)
(b)
(c)
(d)
(e)

coercion, as defined in section 15;

undue influence, as defined in section 16;
fraud, as defined in section 17;
misrepresentation, as defined in section 18; or
mistake, subject to the provisions of sections 20, 21 and 22.

(2) Consent is said to be not free when it would not have been given but
for the existence of such coercion, undue influence, fraud, misrepresentation or
mistake.
"Coercion"
defined
Cap.16

Cap.16

"Undue
influence"
defined

15.-(1) "Coercion" is the committing, or threatening to commit, any act

forbidden by the Penal Code, or the unlawful detaining, or threatening to
detain, any property, to the prejudice of any person whatever, with the
intention of causing any person to enter into an agreement.
(2) For the purposes of this Act it is immaterial whether the Penal Code
is or is not in force in the place where the coercion is employed.
16.-(1) A contract is said to be induced by "undue influence" where the
relationship subsisting between the parties are such that one of the parties are
in a position to dominate the will of the other and uses that position to obtain
an unfair advantage over the other.
(2) In particular and without prejudice to the generality of the foregoing
principle, a person is deemed to be in a position to dominate the will of
another
(a) where he holds a real or apparent authority over the other, or
where he stands in a fiduciary relation to the other; or
(b) where he makes a contract with a person whose mental capacity is

13

Cap.6

"Fraud" defined

"Misrepresentation" defined

temporarily or permanently affected by reason of age, illness, or

mental or bodily distress.
(3) Where a person who is in a position to dominate the will of another,
enters into a contract with him, and the transaction appears, on the face of it or
on the evidence adduced, to be unconscionable, the burden of proving that
such contract was not induced by undue influence shall lie upon the person in a
position to dominate the will of the other:
Provided that nothing in this subsection shall affect the provisions of
section 120 of the Evidence Act.
17.-(1) "Fraud" means any of the following acts committed by a party
to a contract, or with his connivance, or by his agent, with intent to deceive
another party thereto or his agent, or to induce him to enter into the contract
(a) the suggestion, as to a fact, of that which is not true by one who
does not believe it to be true;
(b) the active concealment of a fact by one having knowledge or
belief of the fact;
(c) a promise made without any intention of performing it;
(d) any other act fitted to deceive; or
(e) any such act or omission as the law specially declares to be
fraudulent.
(2) For the purposes of this Act, mere silence as to facts likely to affect
the willingness of a person to enter into a contract is not fraud, unless the
circumstances of the case are such that regard being had to them, it is the duty
of the person keeping silence to speak, or unless his silence is, in itself,
equivalent to speech.
18."Misrepresentation" means
(a) the positive assertion, in a manner not warranted by the
information of the person making it, of that which is not true,
though he believed it to be true;
(b) any breach of duty which, without an intent to deceive, gains an
advantage to the person committing it, or anyone claiming under
him, by misleading another to his prejudice, or to the prejudice of
anyone claiming under him;
(c) causing, however innocently, a party to an agreement to make a
mistake as to the substance of the thing which is the subject of the
agreement.

Effect of
agreements
induced by
coercion, fraud,
misrepresentation or
undue influence

19.-(1) When consent to an agreement is caused by coercion, undue

influence, fraud, or misrepresentation, the agreement is a contract voidable at
the option of the party whose consent was so caused:
Provided that if such consent was caused by misrepresentation or by silence, or
fraud within the meaning of section 17, the contract nevertheless is not
voidable, if the party whose consent was so caused had the means of
discovering the truth with ordinary diligence.

14

(2) A fraud or misrepresentation which did not cause the consent to a

contract of the party on whom such fraud was practised, or to whom such
misrepresentation was made, does not render a contract voidable.
(3) A party to a contract, whose consent was caused by fraud or
misrepresentation may, if he thinks fit, insist that the contract shall be
performed, and that he shall be put in the position in which he would have
been if the representations made had been true.
(4) A contract, which is voidable on the ground that the consent of a
party thereto was caused by undue influence, may be set aside either absolutely
or, if the party who was entitled to avoid it has received any benefit thereunder,
upon such terms and conditions as to the court may seem just.
Agreement void
where both
parties are under
a mistake as to
matter of fact

20.-(1) Where both the parties to an agreement are under a mistake as

to a matter of fact essential to the agreement, the agreement is void.
(2) An erroneous opinion as to the value of the thing which forms the
subject matter of the agreement is not to be deemed a mistake as to a matter of
fact.

Effect of
mistakes as to
law

21. A contract is not voidable because it was caused by a mistake as to

any law in force in Tanzania; but a mistake as to a law not in force in Tanzania
has the same effect as a mistake of fact.

Unilateral
mistake

22. A contract is not voidable merely because it was caused by one of

the parties to it being under a mistake as to a matter of fact.

What
considerations
and objects are
lawful and what
are not

23.-(1) The consideration or object of an agreement is lawful, unless

(a) it is forbidden by law;
(b) is of such a nature that, if permitted, it would defeat the provisions
of any law;
(c) is fraudulent;
(d) involves or implies injury to the person or property of another; or
(e) the court regards it as immoral or opposed to public policy.
(2) In each of cases referred to in subsection (1), the consideration or
object of an agreement is said to be unlawful; and every agreement of which
the object or consideration is unlawful is void and no suit shall be brought for
the recovery of any money paid or thing delivered, or for compensation for any
thing done, under any such agreement, unless
(a) the court is satisfied that the plaintiff was ignorant of the illegality
of the consideration or object of the agreement at the time he paid
the money or delivered the thing sought to be recovered or did the
thing in respect of which compensation is sought, and that the
illegal consideration or object had not been effected at the time
when the plaintiff became aware of the illegality and repudiated
the agreement;
(b) the court is satisfied that the consent of the plaintiff to the
agreement was induced by fraud, misrepresentation, coercion or

15

undue influence; or
(c) the agreement is declared to be illegal by any written law with the
object of protecting a particular class of persons of which the
plaintiff is one.
Agreements
void if
considerations
and objects are
unlawful in part

24. If any part of a single consideration for one or more objects, or any
one or any part of any one of several considerations for a single object, is
unlawful, the agreement is void.

Agreement
without
consideration is
void, unless it is
in writing and
registered; or is
a promise to
compensate for
something done;
or is a promise
to pay a debt
barred by
limitation of law

25.-(1) An agreement made without consideration is void unless

(a) it is expressed in writing and registered under the law for the time
being in force for the registration of documents, and is made on
account of natural love and affection between parties standing in a
near relation to each other;
(b) it is a promise to compensate, wholly or in part, a person who has
already voluntarily done something for the promisor, or something
which the promisor was legally compellable to do; or
(c) it is a promise, made in writing and signed by the person to be
charged therewith, or by his agent generally or specially
authorised in that behalf, to pay wholly or in part a debt of which
the creditor might have enforced payment but for the law for the
limitation of suits,
in any of the cases under paragraphs (a), (b) and (c), such an agreement is a
contract.
(2) Nothing in this section shall affect the validity, as between the
donor and donee, of any gift actually made
(3) An agreement to which the consent of the promisor is freely given
is not void merely because the consideration is inadequate; but the inadequacy
of the consideration may be taken into account by the court in determining the
question whether the consent of the promisor was freely given.

Agreement in
restraint of
marriage void

26. Every agreement in general restraint of the marriage of any person,

other than a minor, is void.

Agreement in
restraint of trade
void

27.-(1) Every agreement by which any one is restrained from exercising

a lawful profession, trade or business is to that extent void, unless the restraint
is reasonable in reference to the interests of the parties concerned and in
reference to the interests of the public.
(2) In particular and without prejudice to the generality of the foregoing
principle, an agreement in restraint of trade is not reasonable in reference to the
interests of the parties, if the restraint exceeds what is reasonably necessary to
protect a proprietary interest of the promisee.
(3) The burden of proving that any restraint is reasonable in reference
to the interests of the parties shall lie upon the promisee, and the burden of
proving that any restraint is unreasonable in reference to the interests of the

16

public shall lie on the promisor.

Agreement in
restraint of legal
proceedings
void

28. Every agreement, by which any party thereto is restricted

absolutely from enforcing his rights under or in respect of any contract, by the
usual legal proceedings in the ordinary tribunals, or which limits the time
within which he may thus enforce his rights, is void to that extent:
Provided that this section shall not
(a) render illegal
(i)
a contract by which two or more persons agree that any
dispute which may arise between them in respect of any
subject or class of subjects shall be referred to
arbitration, and that only the amount awarded in such
arbitration shall be recoverable in respect of the dispute
so referred; or
(ii)
any contract in writing by which two or more persons
agree to refer to arbitration any question between them
which has already arisen; or
(b) affect any provision of any law in force for the time being as to
references to arbitration.

Agreement void
for uncertainty

29. An agreement, the meaning of which is not certain, or capable of

being made certain, is void.

Agreement by
way of wager
void

30. An agreement by way of wager is void; and no suit shall be

brought for recovering anything alleged to be won on any wager, or entrusted
to any person to abide the result of any game or other uncertain event on which
any wager is made.
PART IV
CONTINGENT CONTRACTS

"Contingent
contract"
defined

31. A "contingent contract" is a contract to do or not to do something,

if some event, collateral to such contract, does or does not happen.

Enforcement of
contract
contingent on an
event happening

32. A contingent contract to do or not to do anything if an uncertain

future event happens cannot be enforced by law unless and until that event has
happened; and if the event becomes impossible, such contract becomes void.

Enforcement of
contract
contingent on an
event not
happening

33. A contingent contract to do or not to do anything if an uncertain

future event does not happen can be enforced when the happening of that event
becomes impossible, and not before.

When event on
which contract
is contingent to
be deemed

34. If the future event on which a contract is contingent is the way in

which a person will act at an unspecified time, the event shall be considered to
become impossible when such person does anything which renders it

17

impossible, if it
is the future
conduct of a
living person

impossible that he should so act within any definite time, or otherwise than
under further contingencies.

A contingent
contract

35.-(1) A contingent contract to do or not to do anything if a specified

uncertain event happens within a fixed time becomes void if, at the expiration
of the time fixed, such event has not happened, or if, before the time fixed,
such event becomes impossible.
(2) A contingent contract to do or not to do anything if a specified or
uncertain event does not happen within a fixed time may be enforced by law
when the time fixed has expired and such event has not happened, or, before
the time fixed has expired if it becomes certain that such event will not happen.

Agreement
contingent on
impossible
events void

36. A contingent agreement to do or not to do anything, if an

impossible event happens, is void, whether the impossibility of the event is
known or not to the parties to the agreement at the time when it is made.
PART V
PERFORMANCE OF CONTRACTS
Contracts which must be Performed

Obligations of
parties to
contracts

37.-(1) The parties to a contract must perform their respective

promises, unless such performance is dispensed with or excused under the
provisions of this Act or of any other law.
(2) Promises bind the representatives of the promisor in case of the
death of such promisor before performance, unless a contrary intention appears
from the contract.

Effect of refusal
to accept offer
of performance

38.-(1) Where a promisor has made an offer of performance to the

promisee, and the offer has not been accepted, the promisor is not responsible
for non-performance, nor does he thereby lose his rights under the contract.
(2) Every such offer must fulfil the following conditions
(a) it must be unconditional;
(b) it must be made at a proper time and place, and under such
circumstances that the person to whom it is made may have a
reasonable opportunity of ascertaining that the person by whom it
is made is able and willing there and then to do the whole of what
he is bound by his promise to do;
(c) if the offer is an offer to deliver anything to the promisee, the
promisee must have a reasonable opportunity of seeing that the
thing offered is the thing which the promisor is bound by his
promise to deliver.
(3) An offer to one of several joint promisees has the same legal
consequences as an offer to all of them.

18

Effect of refusal
of party to
perform promise
wholly

39. When a party to a contract has refused to perform, or disabled

himself from performing his promise in its entirety, the promisee may put an
end to the contract, unless he has signified, by words or conduct, his
acquiescence in its continuance.

Persons by
whom promise
is to be
performed

40. If it appears from the nature of the case that it was the intention of
the parties to any contract that any promise contained in it should be performed
by the promisor himself, such promise must be performed by the promissory;
and in other cases the promisor or his representatives may employ a competent
person to perform it.

Effect of
accepting
performance
from third
person

41. When a promisee accepts performance of the promise from a third

person, he cannot afterwards enforce it against the promisor.

Joint Liabilities and Rights

Devolution of
joint liabilities

42. When two or more persons have made a joint promise, then, unless
a contrary intention appears by the contract, all such persons, during their joint
lives, and after the death of any of them, his representative jointly with the
survivor or survivors, and after the death of the last survivor, the
representatives of all jointly, must fulfil the promise.

Obligations and
liabilities of
joint promisors

43.-(1) When two or more persons make a joint promise, the promisee
may, in the absence of express agreement to the contrary, compel any one or
more of such joint promisors to perform the whole of the promise:
Provided that where a promisee institutes a suit against any one or more
of such joint promisors and obtains a decree therein, nothing in this subsection
shall be construed as permitting the promisee to institute any further suit
arising out of the same cause of action against any other of such joint
promisors.
(2) Each of two or more joint promisors may compel every other joint
promisor to contribute equally with himself to the performance of the promise,
unless a contrary intention appears from the contract.
(3) If any one of two or more joint promisors makes default in such
contribution, the remaining joint promisors must bear the loss arising from
such default in equal shares.
(4) Nothing in this section shall prevent a surety from recovering from
his principal payments made by the surety on behalf of the principal, or entitle
the principal to recover anything from the surety on account of payments made
by the principal.

Effect of release
of one joint
promisor

44. Where two or more persons have made a joint promise, a release of
one of such joint promisors by the promisee does not discharge the other joint
promisor or joint promisors; neither does it free the joint promisor so released
from responsibility to the other joint promisor or joint promisors.
19

Devolution of
joint rights

45. When a person has made a promise to two or more persons jointly,
then, unless a contrary intention appears from the contract, the right to claim
performance rests, as between him and them, with them during their joint lives,
and, after the death of any of them, with the representative of such deceased
person jointly with the survivor or survivors, and, after the death of the last
survivor, with the representatives of all jointly.
Time and Place for Performance

Time for
performance of
promise where
no application is
to be made and
no time is
specified

46. Where, by the contract, a promisor is to perform his promise

without application by the promisee, and no time for performance is specified,
the promise must be performed within a reasonable time, which is, in each
particular case, a question of fact.

Time and place

for performance
of promise
where time is
specified and no
application is to
be made

47. When a promise is to be performed on a certain day, and the

promisor has undertaken to perform it without application by the promisee, the
promisor may perform it at any time during the usual hours of business on such
day and at the place at which the promise ought to be performed.

Application for
performance on
certain day to be
at proper time
and place

48.-(1) When a promise is to be performed on a certain day, and the

promisor has not undertaken to perform it without application by the promisee,
it is the duty of the promisee to apply for performance at a proper place and
within the usual hours of business.
(2) The question as to what is a proper time and place is, in each
particular case, a question of fact.

Place for
performance of
promise where
no application to
be made and no
place fixed for
performance

49. When a promise is to be performed without application by the

promisee, and no place is fixed for the performance of it, it is the duty of the
promisor to apply to the promisee to appoint a reasonable place for the
performance of the promise, and to perform it at such place.

Performance in
manner or at
time prescribed
or sanctioned by
promisee

50. The performance of any promise may be made in any manner, or at

any time which the promisee prescribes or sanctions.

Performance of Reciprocal Promises

Promisor not
bound to
perform unless
reciprocal
promisee ready

51. When a contract consists of reciprocal promises to be

simultaneously performed, no promisor need perform his promise unless the
promisee is ready and willing to perform his reciprocal promise.

20

and willing to
perform
Order of
performance of
reciprocal
promises

52. Where the order in which reciprocal promises are to be performed

is expressly fixed by the contract, they shall be performed in that order; and,
where the order is not expressly fixed by the contract, they shall be performed
in that order which the nature of the transaction requires.

Liability of
party preventing
event on which
contract is to
take effect

53. When a contract contains reciprocal promises, and one party to the
contract prevents the other from performing his promises, the contract becomes
voidable at the option of the party so prevented; and he is entitled to
compensation from the other party for any loss which he may sustain in
consequence of the non-performance of the contract.

Effect of default
as to that
promise which
should be first
performed, in
contract
consisting of
reciprocal
promises

54. When a contract consists of reciprocal promises, such that one of

them cannot be performed, or that its performance cannot be claimed till the
other has been performed, and the promisor of the promise last mentioned fails
to perform it, such promisor cannot claim the performance of the reciprocal
promise, and must make compensation to the other party to the contract for any
loss which such other party may sustain by the non-performance of the
contract.

Effect of failure
to perform at
fixed time in
contract

55.-(1) When a party to a contract promises to do a certain thing at or

before a specified time, or certain things at or before specified times, and fails
to do any such thing at or before the specified time, the contract, or so much of
it as has not been performed, becomes voidable at the option of the promisee,
if the intention of the parties was that time should be of the essence of the
contract.
(2) If it was not the intention of the parties that time should be of the
essence of the contract, the contract does not become voidable by the failure to
do such thing at or before the specified time; but the promisee is entitled to
compensation from the promisor for any loss occasioned to him by such
failure.
(3) If, in case of a contract voidable on account of the promisor's failure
to perform his promise at the time agreed, the promisee accepts performance of
such promise at any time other than that agreed, the promisee cannot claim
compensation for any loss occasioned by the non-performance of the promise
at the time agreed, unless, at the time of such acceptance, he gives notice to the
promisor of his intention to do so.

Agreement to do
impossible act,
subsequent
impossibility or
unlawfulness
and related
compensation

56.-(1) An agreement to do an act impossible in itself is void.

(2) A contract to do an act which, after the contract is made, becomes
impossible, or, by reason of some event which the promisor could not prevent,
unlawful, becomes void when the act becomes impossible or unlawful.
(3) Where one person has promised to do something which he knew or,
with reasonable diligence, might have known, and which the promisee did not
21

know to be impossible or unlawful, such promisor must make compensation to

such promisee for any loss which such promisee sustains through the nonperformance of the promise.
Reciprocal
promise to do
things legal, and
also other things
illegal

57. Where persons reciprocally promise, first, to do certain things

which are legal, and, secondly, under specified circumstances, to do certain
other things which are illegal, the first set of promises is a contract, but the
second is a void agreement.

Alternative
promise, one
branch being
illegal

58. In the case of an alternative promise, one branch of which is legal

and the other illegal, the legal branch alone can be enforced.

Appropriation of Payments
Application of
payment where
debt to be
discharged is
indicated

59. Where a debtor, owing several distinct debts to one person, makes
a payment to him, either with express intimation, or under circumstances
implying that the payment is to be applied to the discharge of some particular
debt, the payment, if accepted, must be applied accordingly.

Application of
payment where
debt to be
discharged is not
indicated

60. Where the debtor has omitted to intimate and there are no other
circumstances indicating to which debt the payment is to be applied, the
creditor may apply it at his discretion to any lawful debt actually due and
payable to him from the debtor, whether its recovery is or is not barred by the
law in force for the time being as to the limitation of suits.

Application of
payment where
neither party
appropriates

61. Where neither party makes any appropriation, the payment shall be
applied in discharge of the debts in order of time, whether they are or are not
barred by the law in force for the time being as to the limitation of suits; and if
the debts are of equal standing, the payment shall be applied in discharge of
each proportionably.
Contracts Which Need Not Be Performed

Effect of
novation,
rescission and
alteration of
contract

62. If the parties to a contract agree to substitute a new contract for it,
or to rescind or alter it, the original contract need not be performed.

Promisee may
dispense with or
remit
performance of
promise

63. Every promisee may dispense with or remit, wholly or in part, the
performance of the promise made to him, or may extend the time for such
performance, or may accept instead of it any satisfaction which he thinks fit.

Consequences
of rescission of
voidable
contract

64. When a person at whose option a contract is voidable rescinds it,

the other party hereto need not perform any promise therein contained in which
he is promisor; and the party rescinding a voidable contract shall, if he has

22

received any benefit thereunder from another party to such contract, restore
such benefit, so far as may be, to the person from whom it was received.
Obligation of
person who has
received
advantage under
void or contract
that becomes
void

65. When an agreement is discovered to be void, or when a contract

becomes void, any person who has received any advantage under such
agreement or contract is bound to restore it, or to make compensation for it, to
the person agreement from whom he received it:
Provided that where a contract becomes void by reason of the
provisions of subsection (2) of section 56, and a party thereto incurred
expenses before the time when that occurs in, or for the purposes of, the
performance of the contract, the court may, if it considers it just to do so in all
the circumstances of the case, allow such party to retain the whole or any part
of any such advantage as aforesaid received by him, or discharge him wholly
or in part from making compensation therefore, or may make an order that
such party recover the whole or any part of any payments or other advantage
which would have been due to him under the contract had it not become void,
being, in any such case, an advantage or part thereof, discharge or payment,
not greater in value than the expenses so incurred.

Mode of
communicating
or revoking
rescission of
voidable
contract

66. The rescission of a voidable contract may be communicated or

revoked in the same manner, and subject to the same rules, as apply to the
communication or revocation of a proposal.

Effect of neglect
of promisee

67. If any promisee neglects or refuses to afford the promisor

reasonable facilities for the performance of his promise, the promisor is
excused by such neglect or refusal as to any non-performance caused facilities
thereby.

PART VI
CERTAIN RELATIONS RESEMBLING THOSE CREATED BY CONTRACT
Claim for
necessaries
supplied to
person incapable
of contracting,
or on his
account

68. If a person incapable of entering into a contract, or anyone whom

he is legally bound to support, is supplied by another person with necessaries
suited to his condition in life, the person who has furnished such supplies is
entitled to be reimbursed from the property of such incapable person.

Reimbursement
of person paying
money due by
another in
payment of
which he is
interested

69. A person who is interested in the payment of money which another

is bound by law to pay, and who therefore pays it, is entitled to be reimbursed
by the other.

23

Obligation of
person enjoying
benefit of nongratuitous act

70. Where a person lawfully does anything for another person, or

delivers anything to him, not intending to do so gratuitously, and such other
person enjoys the benefit thereof, the latter is bound to make compensation to
the former in respect of, or to restore, the thing so done or delivered:
Provided that no compensation shall be made in any case in which the person
sought to be charged had no opportunity of accepting or rejecting the benefit.

Responsibility
of finder of
goods

71. A person who finds goods belonging to another, and takes them
into his custody, is subject to the same responsibility as a bailee.

Liability of
person to whom
money is paid or
thing delivered
by mistake or
under coercion

72.
A person to whom money has been paid, or anything delivered,
by mistake as to a matter of fact which, if true, would give rise to a legal
obligation or under coercion, must repay or return it.

PART VII
CONSEQUENCES OF BREACH OF CONTRACT
Compensation
for loss or
damage caused
by breach of
contract, etc.

73.-(1) When a contract has been broken, the party who suffers by such
breach is entitled to receive, from the party who has broken the contract,
compensation for any loss or damage caused to him thereby, which naturally
arose in the usual course of things from such breach, or which the parties
knew, when they made the contract, to be likely to result from the breach of it.
(2) The compensation is not to be given for any remote and indirect
loss or damage sustained by reason of the breach.
(3) When an obligation resembling those created by contract has been
incurred and has not been discharged, any person injured by the failure to
discharge is entitled to receive the same compensation from the party in default
as if such person had contracted to discharge it and had broken his contract.
(4) In estimating the loss or damage arising from a breach of contract,
the means which existed of remedying the inconvenience caused by the nonperformance of the contract must be taken into account.

Compensation
for breach of
contract where
penalty
stipulated

74.-(1) When a contract has been broken, if a sum is named in the

contract as the amount to be paid in case of such breach, or if the contract
contains any other stipulation by way of penalty, the party complaining of the
breach is entitled, whether or not actual damage or loss is proved to have been
caused thereby, to receive from the party who has broken the contract
reasonable compensation not exceeding the amount so named or, as the case
may be, the penalty stipulated.
(2) A stipulation for increased interest from the date of default may be a
stipulation by way of penalty.
(3) Notwithstanding the foregoing provisions of this section, when any
person enters into any bail-bond, recognisance or other instrument of the same
nature, or under the provisions of any law, or under the orders of the
Government or the President gives any bond for the performance of any public
24

duty or act in which the public are interested, he shall be liable, upon breach of
the condition of any such instrument, to pay the whole sum mentioned therein.
(4) For the avoidance of doubt, it is hereby declared that a person who
enters into a contract with the Government or the President does not
necessarily thereby undertake any public duty, or promise to do an act in which
the public are interested.
Party rightfully
rescinding
contract entitled
to compensation

75.
A person who rightly rescinds a contract is entitled to
compensation for any damage which he has sustained through the nonfulfilment of the contract.
PART VIII
INDEMNITY AND GUARANTEE

"Contract of
indemnity"
defined

76. A contract by which one party promises to save the other from loss
caused to him is called a "contract of indemnity".

Rights of
indemnityholder when
sued, etc.

77. The promisee in a contract of indemnity, acting within the scope of

his authority, is entitled to recover from the promisor
(a) all damages which he may be compelled to pay in any legal
proceedings in respect of any matter to which the promise to
indemnify applies;
(b) all costs which he may be compelled to pay in any such
proceedings if, in bringing or defending them, he did not
contravene the orders of the promisor, and acted as it would have
been prudent for him to act in the absence of any contract of
indemnity, or if the promisor authorised him to bring or defend
the proceedings; and
(c) all sums which he may have paid under the terms of any
compromise of any such proceedings, if the compromise was not
contrary to the orders of the promisor, and was one which it would
have been prudent for the promisee to make in the absence of any
contract of indemnity, or if the promisor authorised him to
compromise the proceedings.

"Contract of
guarantee",
"surety",
"principal
debtor", and
"creditor"
defined

78. A "contract of guarantee" is a contract to perform the promise, or

discharge the liability, of a third person in case of his default and the person
who gives the guarantee is called the "surety"; the person in respect of whose
default the guarantee is given is called the "principal debtor", and the person to
whom the guarantee is given is called the "creditor"; and guarantee may be
either oral or written.

Consideration
for guarantee

79. Anything done, or any promise made, for the benefit of the
principal debtor may be a sufficient consideration to the surety for giving the
guarantee.

25

Surety's liability

80. The liability of the surety is co-extensive with that of the principal
debtor, unless it is otherwise provided by the contract.

"Continuing
guarantee"
defined

81. A guarantee which extends to a series of transactions is called a

"continuing guarantee".

Revocation of
continuing
guarantee

82. A continuing guarantee may at any time be revoked by the surety,

as to future transactions, by notice to the creditor.

Revocation of
continuing
guarantee by
surety's death

83.
The death of the surety operates, in the absence of any contract
to the contrary, as a revocation of a continuing guarantee, so far as regards
future transactions.

Liability of two
persons,
primarily liable,
not affected by
arrangements
between them
that one shall be
surety on
another's default

84. Where two persons contract with a third person to undertake a

certain liability, and also contract with each other that one of them shall be
liable only on the default of the other, the third person not being a party to such
contract, the liability of each of such two persons to the third person under the
first contract is not affected by the existence of the second contract, although
such third person may have been aware of its existence.

Discharge of
surety by
variance in
terms of contract

85. Any variance, made without the surety's consent in the terms of the
contract between the principal debtor and the creditor, discharges the surety as
to transactions subsequent to the variance.

Discharge of
surety by release
or discharge of
principal debtor

86. The surety is discharged by any contract between the creditor and
the principal debtor, by which the principal debtor is released, or by any act or
omission of the creditor, the legal consequence of which is the discharge of the
principal debtor.

Discharge of
surety when
creditor
compounds
with, gives time
to, or agrees not
to sue, principal
debtor

87. A contract between the creditor and the principal debtor, by which
the creditor makes a composition with, or promises to give time to, or not to
sue, the principal debtor, discharges the surety, unless the surety assents to
such contract.

Surety not
discharged when
agreement made
with third
person to give
time to principal
debtor

88. Where a contract to give time to the principal debtor is made by the
creditor with a third person, and not with the principal debtor, the surety is not
discharged.

26

Creditor's
forbearance to
sue does not
discharge surety

89. Mere forbearance on the part of the creditor to sue the principal
debtor or to enforce any other remedy against him does not, in the absence of
any provision in the guarantee to the contrary, discharge the surety.

Release of one
co-surety does
not discharge
others

90. Where there are co-sureties, a release by the creditor of one of

them does not discharge the others; neither does it free the surety so released
from his responsibility to the other sureties.

Discharge of
surety by
creditor's act or
omission
impairing
surety's eventual
remedy

91. If the creditor does any act which is inconsistent with the rights of
the surety, or omits to do any act which his duty to the surety requires him to
do, and the eventual remedy of the surety himself against the principal debtor
is thereby impaired, the surety is discharged.

Rights of surety
on payment or
performance

92. Where a guaranteed debt has become due, or default of the

principal debtor to perform a guaranteed duty has taken place, the surety, upon
payment or performance of all that he is liable for, is invested with all the
rights which the creditor had against the principal debtor.

Surety's right to
benefit of
creditor's
securities

93. A surety is entitled to the benefit of every security which the

creditor has against the principal debtor whether such security was in existence
at the time when the contract of suretyship is entered into or came into
existence subsequent thereto, and whether the surety knows of the existence of
such security or not; and, if the creditor loses or, without the consent of the
surety, parts with such security, the surety is discharged to the extent of the
value of the security.

Guarantee
obtained by
misrepresentatio
n invalid

94. Any guarantee which has been obtained by means of is

representation made by the creditor, or with his knowledge and assent,
concerning a material part of the transaction, is invalid.

Guarantee
obtained by
concealment
invalid

95. Any guarantee which the creditor has obtained by means of

keeping silence as to material circumstances invalid.

Guarantee on
contract that
creditor shall not
act on it until
co-surety joins

96. Where a person gives a guarantee upon a contract that a creditor

shall not act upon it until another person has joined in it as co-surety, the
guarantee is not valid if that other person does not join.

Implied promise
to indemnify
surety

97. In every contract of guarantee there is an implied promise by the

principal debtor to indemnify the surety; and the surety is entitled to recover
from the principal debtor whatever sum he has rightfully paid under the
guarantee, but no sums which he has paid wrongfully.

27

Co-sureties
liable to
contribute
equally

98. Where two or more persons are co-sureties for the same debt or
duty, either jointly or severally, and whether under the same or different
contracts, and whether with or without the knowledge of each other, the cosureties, in the absence of any contract to the contrary, are liable, as between
themselves, to pay each an equal share of the whole debt, or of that part of it
which remains unpaid by the principal debtor.

Liability of cosureties bound

in different sums

99. Co-sureties who are bound in different sums are liable to pay
equally as far as the limits of their respective obligations permit.
PART IX
BAILMENT

"Bailment",
"bailor" and
"bailee" defined

100.-(1) A "bailment" is the delivery of goods by one person to another

for some purpose, upon a contract that they shall, when the purpose is
accomplished, be returned or otherwise disposed of according to the directions
of the person delivering them; and the person delivering the goods is called the
"bailor" while the person to whom they are delivered is called the "bailee".
(2) If a person already in possession of the goods of other contracts to
hold them as a bailee, he thereby becomes the bailee, and the owner becomes
the bailor, of such goods although they may not have been delivered by way of
bailment.

Delivery to
bailee, how
made

101. The delivery to the bailee may be made by doing anything which
has the effect of putting the goods in the possession of the intended bailee or of
any person authorised to hold them on his behalf.

Bailor's duty to
disclose faults in
goods bailed

102.-(1) The bailor is bound to disclose to the bailee faults in the goods
bailed, of which the bailor is aware, and which materially interfere with the use
of them, or expose the bailee to extraordinary risks; and, if he does not make
such disclosure, he is responsible for damage arising to the bailee directly from
such faults.
(2) If the goods are bailed for hire, the bailor is responsible for such damage,
whether he was or was not aware of the existence of such faults in the goods
bailed.

Care to be taken
by bailee

103. In all cases of bailment the bailee is bound to take as much care of
the goods bailed to him as a person of ordinary prudence would, under similar
circumstances, take of his own goods of the same bulk, quality and value as the
goods bailed:
Provided that nothing in this section shall be construed as applying to
or qualifying the liability at common law of a common carrier or an inn keeper.

When bailee not

liable for loss,
etc., of thing
bailed

104. The bailee, in the absence of any special contract, is not

responsible for the loss, destruction or deterioration of the thing bailed, if he
has taken the amount of care of described in section 103.

28

Termination of
bailment by
bailee's act
inconsistent
with conditions

105. A contract of bailment is voidable at the option of the bailor, if

the bailee does any act with regard to the goods bailed, inconsistent with the
conditions of the bailment.

Liability of
bailee making
unauthorised use
of goods bailed

106. If the bailee makes any use of the goods bailed, which is not
according to the conditions of the bailment, he is liable to make compensation
to the bailor for any damage arising to the goods from or during such use of
them.

Effect of
mixture, with
bailor's consent,
of his goods
with bailee's

107. If the bailee, with the consent of the bailor, mixes the goods of the
bailor with his own goods, the bailor and the bailee shall have an interest in
proportion to their respective with shares, in the mixture thus produced.

Effect of
mixture, without
bailor's consent,
when the goods
can be separated

108. If the bailee, without the consent of the bailor, mixes the goods of
the bailor with his own goods, and the goods can be separated or divided, the
property in the goods remains in the parties respectively; but the bailee is
bound to bear the expense of separation or division, and any damage arising
from the mixture.

Effect of
mixture, without
bailor's consent,
when cannot be
separated

109. If the bailee, without the consent of the bailor, mixes the goods of
the bailor with his own goods, in such a manner that it is impossible to separate
the goods bailed from other goods and deliver them back, the bailor is entitled
to be compensated by the bailee for the loss of the goods.

Repayment by
bailor of
necessary
expenses

110. Where, by the conditions of the bailment, the goods are to be kept
or to be carried, or to have work done upon them by the bailee for the bailor,
and the bailee is to receive no remuneration, the bailor shall repay to the bailee
the necessary expenses incurred by him for the purpose of the bailment.

Restoration of
goods lent
gratuitously

111. The lender of a thing for use may at any time require its return, if
the loan was gratuitous, even though he lent it for a specified time or purpose;
but, if, on the face of such loan made for a specified time or purpose, the
borrower has acted in such a manner that the return of the thing lent before the
time agreed upon would cause him loss exceeding the benefit actually derived
by him from the loan, the lender must, if he compels the return, indemnify the
borrower for the amount in which the loss so occasioned exceeds the benefit so
derived.

Return of goods
bailed, on
expiration of
time or
accomplishment
of purpose

112. It is the duty of the bailee to return, or deliver according to the

bailor's directions, the goods bailed, without demand, as soon as the time for
which they were bailed has expired, or the purpose for which they were bailed
has been accomplished.

29

Bailee's
responsibility
when goods are
not duly
returned

113. If, by the default of the bailee, the goods are not returned,
delivered or tendered at the proper time, he is responsible to the bailor for any
loss, destruction or deterioration of the goods from that time.

Termination of
gratuitous
bailment by
death

114. A gratuitous bailment is terminated by the death either of the

bailor or of the bailee.

Bailor entitled to
increase or
profit from
goods bailed

115. In the absence of any contract to the contrary, the bailee is

bound to deliver to the bailor, or according to his directions, any increase or
profit which may have accrued from the goods bailed.

Bailor's
responsibility to
bailee

116. The bailor is responsible to the bailee for any loss which the bailee
may sustain by reason that the bailor was not entitled to make the bailment, or
to receive back the goods, or to give directions respecting them.

Bailment by
several joint
owners

117. If several joint owners of goods bail them, the bailee may
deliver them back to, or according to the directions of, one joint owner without
the consent of all, in the absence of any agreement to the contrary.

Bailee not
responsible on
redelivery to
bailor without
title

118. If the bailor has no title to the goods and the bailee, in good faith,
delivers them back to, or according to the directions of, the bailor, the bailee is
not responsible to the owner in respect of such delivery.

Right of third
person claiming
goods bailed

119. If a person, other than a bailor, claims goods bailed he may apply
to the court to stop the delivery of the goods to the bailor, and to decide the
title to the goods.

Right of finder
of goods

120. The finder of goods has no right to sue the owner for
compensation for trouble and expense voluntarily incurred by him to preserve
the goods and to find out the owner; but he may retain the goods against the
owner until he receives such compensation; and, where the owner has offered a
specific reward for the return of goods lost, the finder may sue for such reward,
and may retain the goods until he receives it.

When finder of
thing commonly
on sale may sell
it

121. When a thing which is commonly the subject of sale is lost, if

the owner cannot with reasonable diligence be found, or if he refuses, upon
demand, to pay the lawful charges of the finder, the finder may sell it
(a) when the thing is in danger of perishing or of losing the greater
part of its value; or
(b) when the lawful charges of the finder, in respect of the thing
found, amount to two-thirds of its value.

30

Bailee's
particular lien

122. Where the bailee has, in accordance with the purpose of the
bailment, rendered any service involving the exercise of labour or skill in
respect of the goods bailed, he has, in the absence of a contract to the contrary,
a right to retain such goods until he receives due remuneration for the services
he has rendered in respect of them.

General lien of
bankers, factors,
wharfingers,
advocates,
policy-brokers

123. Bankers, factors, wharfingers, advocates and policy-brokers may,

in the absence of a contract to the contrary, retain, as a security for a general
balance of account, any goods and bailed to them; but no other persons have a
right to retain, as a security for such balance, goods bailed to them, unless there
is an express contract to that effect.
Bailments of Pledges

"Pledge",
"pawnor", and
"pawnee"
defined

124. The bailment of goods as security for payment of a debt or

performance of a promise is called "pledge"; and he bailor is in this case called
the "pawnor" while the bailee is called the "pawnee".

Pawnee's right
of retainer

125. The pawnee may retain the goods pledged, not only for payment
of the debt or the performance of the promise, but for the interest of the debt,
and all necessary expenses incurred by him in respect of the possession or for
the preservation of the goods pledged.

Pawnee not to
retain for debt or
promise other
than that for
which goods
pledged

126. The pawnee shall not, in the absence of a contract to that effect,
retain the goods pledged for any debt or promise other than the debt or promise
for which they are pledged; but such contract, in the absence of anything to the
contrary, shall be presumed in regard to subsequent advances made by the
pawnee.
Presumption in Case of Subsequent Advances

Pawnee's right
as to
extraordinary
expenses
incurred

127. The pawnee is entitled to receive from the pawnor extraordinary

expenses incurred by him for the preservation of the goods pledged.

Pawnee's right
where pawnor
makes default

128.-(1) If the pawnor makes default in payment of the debt or

performance, at the stipulated time of the promise, in respect of which the
goods were pledged, the pawnee may bring a suit against the pawnor upon the
debt or promise, and retain the goods pledged as a collateral security; or he
may sell the thing pledged, on giving the pawnor reasonable notice of the sale.
(2) If the proceeds of such sale are less than the amount due in respect
of the debt or promise, the pawnor is still liable to pay the balance but if the
proceeds of the sale are greater than the amount so due, the pawnee shall pay
over the surplus to the pawnor.

31

Defaulting
pawnor's right to
redeem

129. If a time is stipulated for the payment of the debt or performance

of the promise, for which the pledge is and the pawnor makes default in
payment of the debt or performance of the promise at the stipulated time, he
may redeem the goods pledged at any subsequent time before the actual sale of
them; but he must, in that case, pay, in addition, any expenses which have
arisen from his default.

Pledges by
mercantile
agents and
persons in
possession
under voidable
contracts

Cap.214

130.-(1) Where a mercantile agent is, with the consent of the owner, in
possession of goods or the documents of title to goods, any pledge made by
him, when acting in the ordinary course of business of a mercantile agent, shall
be as valid as if he were expressly authorised by the owner of the goods to
make the same; provided that the pawnee acts in good faith and has not at the
time of the pledge notice that the pawnor has no authority to pledge.
(2) Where a mercantile agent validly pledges the documents of title to
goods, the pledge shall be deemed to be a pledge of the goods.
(3) Where a pawnor has obtained possession of the goods pledged by
him under a contract voidable under section 19, but the contract has not been
rescinded at the time of the pledge, the pawnee acquires a good title to the
goods; provided he acts in good faith and without notice of the pawnor's defect
of title.
(4) In this section the expressions "mercantile agent" and "documents
of title to goods" shall have the meanings ascribed to them respectively in the
Sale of Goods Act.

Pledge where
pawnor has only
a limited interest

131. Where a person pledges goods in which he has only a limited

interest, the pledge is valid to the extent of that interest.

Suits by Bailees or Bailors against Wrongdoers

Suit by bailor or
bailee against
wrongdoer

132. If a third person wrongfully deprives the bailee of the use or

possession of the goods bailed, or does them any injury, the bailee is entitled to
use such remedies as the owner might have used in the like case if no bailment
had been made; and either the bailor or the bailee may bring a suit against a
third person for such deprivation or injury.

Apportionment
of relief or
compensation
obtained by such
suits

133. Whatever is obtained by way of relief or compensation in any

such suit shall, as between the bailor and the bailee, be dealt with according to
their respective interests.

32

PART X
AGENCY
Appointment and Authority of Agents
"Agent" and
"principal"
defined

134. An "agent" is a person employed to do any act for another or to

represent another in dealings with third persons and the person for whom such
act is done, or who is so represented, is called the "principal".

Who may
employ agent

135. Any person who is of the age of majority according to the law
to which he is subject, and who is of sound mind, may employ an agent.

Who may be an
agent

136. As between the principal and third persons any person may
become an agent; but no person who is not of the age of majority and of sound
mind can become an agent, so as to be responsible to his principal according to
the provisions of this Act.

Consideration
not necessary

137.No consideration is necessary to create an agency.

Agent's
authority may be
express or
implied

138. The authority of an agent may be express or implied.

Definitions of
express and
implied
authority

139. An authority is said to be express when it is given by words

spoken or written and to be implied when it is to be inferred from the
circumstances of the case; and things spoken or written, or the ordinary course
of dealing, may be accounted on circumstances of the case.

Extent of agent's
authority

140.-(1) An agent having on authority to do an act has authority to do

every lawful thing which is necessary in order to do such act.
(2) An agent having authority to carry on a business has authority to do
every lawful thing necessary for the purpose, or usually done in the course of
conducting such business.

Agent's
authority in an
emergency

141. An agent has authority, in an emergency, to do all such acts for

the purpose of protecting his principal from loss as would be done by a person
of ordinary prudence, in his own case, under similar circumstances.
Sub-Agents

When agent
cannot delegate

142. An agent cannot lawfully employ another to perform acts which

he has expressly or impliedly undertaken to perform personally unless by the
ordinary custom of trade a sub-agent may, or from the nature of the agency, a
sub-agent must, be employed.

33

"Sub-agent"
defined

143. A "sub-agent" is a person employed by, and acting under the

control of, the original agent in the business of the agency.

Representation
of principal by
sub-agent
properly
appointed

144.-(1) Where a sub-agent is properly appointed, the principal is, so

far as regards third persons, represented by the sub-agent, and is bound by and
responsible for his acts, as if he were an agent originally appointed by the
principal.
(2) The agent is responsible to the principal for the acts of the subagent.
(3) The sub-agent is responsible for his acts to the agent, but not to the
principal, except in case of fraud or wilful wrong.

Agent's
responsibility
for sub-agent
appointed
without
authority

145. Where an agent, without having authority to do so, has

appointed a person to act as a sub-agent, the agent stands towards such person
in the relation of a principal to an agent, and is responsible for his acts both to
the principal and to third persons; the principal is not represented by or
responsible for the acts of the person so employed, nor is that person
responsible to the principal.

Relation
between
principal and
person
appointed by
agent to act in
business of
agency

146. Where an agent, holding an express or implied authority to name

another person to act for the principal in the business of the agency, has duly
named another person accordingly, such person is not a sub-agent, but an agent
of the principal for such part of the business of the agency as is entrusted to
him.

Agent's duty in
naming such
person

147. In selection such agent for his principal, an agent is bound to

exercise the same amount of discretion as a man of ordinary prudence would
exercise in his own case; and if he does this, he is not responsible to the
principal for the acts or negligence of the agent so selected.
Ratification

Right of person
as to acts done
for him without
his authority and
effect of
ratification

148. Where acts are done by one person on behalf of another, but
without his knowledge or authority, he may elect to ratify or to disown such
acts and if he ratifies them, the same effects will follow as if they had been
performed by his authority.

Ratification may
be express or
implied

149. Ratification may be express or may be implied in the conduct of

the person on whose behalf the acts are done.

Knowledge
requisite for
valid ratification

150. No valid ratification can be made by a person whose knowledge

of the facts of the case is materially defective.

34

Effect of
ratifying
unauthorised act
forming part of
a transaction

151. A person ratifying any unauthorised act done on his behalf ratifies
the whole of the transaction of which such act formed a part.

Ratification of
unauthorised act
cannot injure
third person

152. An act done by one person on behalf of another without such

other person's authority, which, if done with authority, would have the effect of
subjecting a third person to damages, or of terminating any right or interest of a
third person, cannot, by ratification, be made to have such effect.
Revocation of Agency

Termination of
agency

153. An agency is terminated by the principal revoking his authority;

or by the agent renouncing the business of the agency; or by the business of the
agency being completed; or by either the principal or agent dying, becoming of
unsound mind or being adjudged bankrupt under the provisions of any law for
the time being in force relating to bankruptcy.

Termination of
agency, where
agent has an
interest in
subject-matter

154. Where the agent has himself an interest in the property which
forms the subject-matter of the agency, the agency cannot, in the absence of an
express contract, be terminated to the prejudice of such interest.

When principal
may revoke
agent's authority

155. The principal may, save as is otherwise provided by section 154,

revoke the authority given to his agent at any time before the authority has
been exercised so as to bind the principal.

Revocation
where authority
has been partly
exercised

156. The principal cannot revoke the authority given to his agent after
the authority has been partly exercised, so far as regards such acts and
obligations as arise from acts already done in the agency.

Compensation
for revocation
by principal or
renunciation by
agent

157. Where there is an express or implied contract that the agency

should be continued for any period of time, the principal must make
compensation to the agent, or the agent to the principal, as the case may be, for
any previous revocation or renunciation of the agency without sufficient cause.

Notice of
revocation or
renunciation

158. Reasonable notice must be given of such revocation or

renunciation; otherwise the damage thereby resulting to the principal or the
agent, as the case may be, must be made good to the one by the other.

Revocation and
renunciation
may be express
or implied

159. Revocation and renunciation may be express or may be implied

in the conduct of the principal or agent respectively.

When
termination of
agent's authority
takes effect as to

160. The termination of the authority of an agent does not, so far as

regards the agent, take effect before it becomes known to him, or so far as
regards third persons, before it becomes known to them.
35

agent, and as to
third persons
Agent's duty on
termination of
agency by
principal's death
or insanity

161. When an agency is terminated by the principal dying or becoming

of unsound mind, the agent is bound to take, on behalf of the representatives of
his late principal, all reasonable steps for the protection and preservation of the
interests entrusted to him.

Termination of
sub-agent's
authority

162. The termination of the authority of an agent causes the

termination (subject to the rules herein contained regarding the termination of
an agent's authority) of the authority of all sub-agents appointed by him.
Agent's Duty to Principal

Agent's duty in
conducting
principal's
business

163. An agent is bound to conduct the business of his principal

according to the directions given by the principal or, in the absence of any such
directions, according to the custom which prevails in doing business of the
same kind at the place where the agent conducts such business. When the agent
acts otherwise, if any loss be sustained, he must make it good to his principal,
and, if any profit accrues, he must account for it.

Skill and
diligence
required from
agent

164. An agent is bound to conduct the business of the agency with as

much skill as is generally possessed by persons engaged in similar business,
unless the principal has notice of his want of skill. The agent is always bound
to act with reasonable diligence, and to use such skill as he possesses; and to
make compensation to his principal in respect of the direct consequences of his
own neglect, want of skill or misconduct, but not in respect of loss or damage
which are indirectly or remotely caused by such neglect, want of skill or
misconduct.

Agent's accounts

165.
demand.

Agent's duty to
communicate
with principal

166. It is the duty of an agent, in cases of difficulty, to use all

reasonable diligence in communicating with his principal, and in seeking to
obtain his instructions.

Right of
principal when
agent deals, on
his own account,
in business of
the agency
without
principal's
consent

167. If an agent deals on his own account in the business of the

agency, without first obtaining the consent of his principal and acquainting him
with all material circumstances which have come to his own knowledge on the
subject, the principal may repudiate the transactions, if the case shows either
that any material fact has been dishonestly concealed from him by the agent, or
that the dealings of the agent have been disadvantageous to him.

An agent is bound to render proper accounts to his principal on

36

Principal's right
to benefit gained
by agent dealing
on his own
account in
business of
agency

168. If an agent, without the knowledge of his principal, deals in the

business of the agency on his own account instead of on account of his
principal, the principal is entitled to claim from the agent any benefit which
may have resulted to him from the transaction.

Agent's right of
retainer out of
sums received
on principal's
account

169. An agent may retain, out of any sums received on account of the
principal in the business of the agency, all moneys due to himself in respect of
advances made or expenses properly incurred by him in conducting such
business, and also such remuneration as may be payable to him for acting as
agent.

Agent's duty to
pay sums
received for
principal

170. Subject to such deductions, the agent is bound to pay to his

principal all sums received on his account.

When agent's
remuneration
becomes due

171. In the absence of any special contract, payment for the

performance of any act is not due to the agent until the completion of such act;
but an agent may detain moneys received by him on account of goods sold,
although the whole of the goods consigned to him for sale may not have been
sold, or although the sale may not be actually completed.

Agent not
entitled to
remuneration for
business
misconducted

172. An agent who is guilty of misconduct in the business of the

agency is not entitled to any remuneration in respect of that part of the business
which he has misconducted.

Agent's lien on
principal's
property

173. In the absence of any contract to the contrary, an agent is

entitled to retain goods, papers and other property, whether movable or
immovable, of the principal received by him, until the amount due to himself
for commission, disbursements and services in respect of the same has been
paid or accounted for to him.
Principal's Duty to Agent

Agent to be
indemnified
against
consequences of
lawful acts

174. The employer of an agent is bound to indemnify him against the

consequences of all lawful acts done by such agent in exercise of the authority
conferred upon him.

Agent to be
indemnified
against
consequences of
acts done in
good faith

175. Where one person employs another to do an act and the agent
does the act in good faith, the employer is liable to indemnify the agent against
the consequences of that act, though it causes an injury to the rights of third
persons.

37

Non-liability of
employer of
agent to do a
criminal act

176. Where one person employs another to do an act which is criminal,

the employer is not liable to the agent, either upon an express or an implied
promise, to indemnify him against the consequences of that act.

Compensation
to agent for
injury caused by
principal's
neglect

177. The principal must make compensation to his agent in respect of injury
caused to such agent by the want of skill.

Effect of Agency on Contracts with Third Persons

Enforcement
and
consequences of
agent's contracts

178. Contracts entered into through an agent, and obligations arising

from acts done by an agent, may be enforced in the same manner, and will
have the same legal consequences as if the contracts had been entered into and
the acts done by the principal in person.

Principal how
far bound when
agent exceeds
authority

179. When an agent does more than he is authorised to do, and when
the part of what he does, which is within his authority, can be separated from
the part which is beyond his authority, so much only of what he does as is
within his authority is binding as between him and his principal.

Principal not
bound when
excess of agent's
authority is not
separable

180. Where an agent does more than he is authorised to do, and what
he does beyond the scope of his authority cannot be separated from what is
within it, the principal is not bound to recognise the transaction.

Consequences
of notice given
to agent

181. Any notice given to or information obtained by the agent,

provided it be given or obtained in the course of the business transacted by him
for the principal, shall, as between the principal and third parties, have the
same legal consequences as if it had been given to or obtained by the principal.

Agent cannot
personally
enforce, nor be
bound by,
contracts on
behalf of
principal

182.-(1) In the absence of any contract to that effect, an agent cannot

personally enforce contracts entered into by him on behalf of his principal, nor
is he personally bound by them.
(2) A contract referred to in subsection (1) shall be presumed to exist in
the following cases
(a) where the contract is made by an agent for the sale or purchase of
goods for a merchant resident abroad;
(b) where the agent does not disclose the name of his principal;
(c) where the principal, though disclosed, cannot be sued.

Rights of parties
to a contract
made by agent
not disclosed

183.-(1) If an agent makes a contract with a person who neither knows,

nor has reason to suspect, that he is an agent, his principal may require the
performance of the contract; but the other contracting party has, as against the
principal, the same rights as he would have had as against the agent if the agent
had been principal.
38

(2) If the principal discloses himself before the contract is completed,

the other contracting party may refuse to fulfil the contract, if he can show that,
if he had known who was the principal in the contract, or if he had known that
the agent was not a principal, he would not have entered into the contract.
Right of person
dealing with
agent personally
liable

184. In cases where the agent is personally liable, a person dealing

with him may hold either him or his principal, or both of them, liable.

Consequence of
inducing agent
or principal

185. When a person who has made a contract with an agent induces
the agent to act upon the belief that the principal only will be held liable, or
induces the principal to act upon the belief that the agent only will be held that
liable, he cannot afterwards hold liable the agent or principal respectively.

Liability of
pretended agent

186. A person untruly representing himself to be the authorised agent

of another, and thereby inducing a third person to deal with him as such agent,
is liable, if his alleged employer does not ratify his acts, to make compensation
to the other in respect of any loss or damage which he has incurred by so
dealing.

Person falsely
contracting as
agent not
entitled to
performance

187. A person with whom a contract has been entered into in the
character of agent is not entitled to require the performance of it if he was in
reality acting, not as agent, but on his own account.

Liability of
principal
inducing belief
that agent's
unauthorised
acts were
authorised

188. When an agent has, without authority, done acts or incurred

obligations to third persons on behalf of his principal, the principal is bound by
such acts or obligations if he has by his words or conduct induced such third
persons to believe that such acts and obligations were within the scope of the
agent's authority.

Effect, on
agreement, of
misrepresentatio
n or fraud by
agent

189. A misrepresentation made, or a fraud committed, by an agent

acting in the course of his business for his principal, has the same effect on an
agreement made by such agent as if such misrepresentation or fraud had been
made or committed by the principal; but a misrepresentation made, or frauds
committed, by an agent, in matters which do not fall within his authority, do
not affect his principal.
PART XI
PARTNERSHIP
Nature of Partnership

"Partnership"
and "firm"
defined

190.-(1) "Partnership" is the relationship which subsists between

persons carrying on business in common as defined with a view of profit.
(2) Persons who have entered into partnership with one another are called

39

collectively a "firm", and the name under which their business is carried on is
called the "firm name".
Rules for
determining
existence of
partnership

191.-(1) The relationship of partnership arises from contract and not

from status.
(2) In determining whether a group of persons is or is not a
partnership, regard shall be had to the following rules
(a) joint tenancy, tenancy in common, joint property, common
property or part ownership does not of itself create a partnership
as to anything so held or owned, whether the tenants or owners do
or do not share any profits made by the use thereof;
(b) the sharing of gross returns does not of itself create a partnership,
whether the persons sharing such returns have or have not a joint
or common right or interest in any property from which or from
the use of which the returns are derived;
(c) the receipt by a person of a share of the profits of a business is
prima facie evidence that he is a partner in the business, but
receipt of such a share, or of a payment contingent on or varying
with the profits of a business, does not of itself make him a
partner in the business, and in particular the receipt of such share
or payment
(i)
by a lender of money to persons engaged or about to
engage in business;
(ii)
by a servant or agent as remuneration;
(iii) by the widow or child of a deceased partner, as annuity;
or
(iv)
by a previous owner or part owner of the business, as
consideration for the sale of the goodwill or share
thereof,
does not of itself make the receiver a partner with the persons
carrying on the business.
Relations of Partners to One Another

General duties
of partners

192. Partners are bound to carry on the business of the partnership for
the greatest common advantage, to be just and faithful to each other, and to
render true accounts and full information of all things affecting the partnership
to any partner or his legal representatives.

Variation by
consent of terms
of partnership

193. The mutual rights and duties of partners, whether ascertained by

agreement or defined by this Act, may be varied by the consent of all of them,
and such consent may either be express, or be implied from a uniform course
of dealing.

Conduct of
business and
mutual rights

194. In the absence of any contract to the contrary, the rights and
duties of the partners in relation to the partnership shall be determined by the

40

and liabilities

following rules
(a) every partner has a right to take part in the management of the
partnership business;
(b) any differences arising as to ordinary matters connected with the
partnership business may be decided by a majority of all the
partners, but no change may be made in the nature of the
partnership business without the consent of all existing partners;
(c) every partner has a right to have access to and to inspect and copy
any of the books of the firm;
(d) a partner is not entitled to receive remuneration for taking part in
the conduct of the business;
(e) all partners are entitled to share equally in the capital and profits
of the business, and must contribute equally towards the losses,
whether of capital or otherwise, sustained by the firm;
(f) the firm must indemnify every partner in respect of payments
made and personal liabilities incurred by him
(i)
in the ordinary and proper course of the business of the
firm; and
(ii)
in or about anything necessarily done for the
preservation of the business or property of the firm;
(g) a partner shall indemnify the firm for any loss caused to it by his
fraud or wilful neglect in the conduct of the business of the firm.

Partnership
property

195.-(1) All property and rights and interests in property originally

brought into the partnership stock or acquired by purchase or otherwise, on
account of the firm, or for the purposes and in the course of the partnership
business, including the goodwill of the business, are partnership property and
must be held by the partners for the purposes of the partnership and in
accordance with the partnership agreement, or failing such agreement, the
provisions of this Act.
(2) Unless the contrary intention appears, property and rights and
interests in property acquired with money belonging to the firm are deemed to
have been acquired on account of the firm.
(3) Where land or any hereditable interest therein has become
partnership property, it shall, unless the contrary intention appears, be treated
as between the partners (including the representatives of a deceased partner),
and also between the heirs of a deceased partner and his executors or
administrators as personal or movable and not as real or hereditable estate.

Accountability
of partners for
private profits
and competing
businesses

196. Subject to any contract between the partners

(a) if a partner derives any profit for himself from any transaction of
the firm, or from the use of the property or business connection of
the firm or the firm name, he shall account for that profit and pay
it to the firm;
(b) if a partner carries on any business of the same nature as and
competing with that of the firm, without the consent of the other

41

partners, he shall account for and pay to the firm all profits made
by him in that business.
When a term for
partnership
expires

197. If a partnership entered into for a fixed term be continued after

such term has expired, the rights and obligations of the partners will, in the
absence of any agreement to the contrary, remain the same as they were at the
expiration of the term, so far as such rights and obligations can be applied to a
partnership dissolvable at the will of any partner.

Introduction of
new partners

198. Subject to any contract between the partners, no person shall be

introduced as a partner into a firm without the consent of all the existing
partners.

Expulsion

199. A partner may not be expelled from a firm by his partners unless
a power to that effect has been expressly conferred by agreement between the
partners.

Retirement

200. Where no fixed term has been agreed upon for the duration of the
partnership, any partner may determine the partnership at any time on giving
notice of his intention so to do to all the other partners.
Relations of Partners to Persons dealing with them

Power of partner
to bind the firm

201.-(1) Every partner is an agent of the firm and his other partners for
the purpose of the business of the partnership; and the acts of every partner
who does any act for carrying on in the usual way of business of the kind
carried on by the firm bind the firm and his partners, unless the partner so
acting has in fact no authority to act for the firm in the particular matter, and
the person with whom he is dealing either knows that he has no authority or
does not know or believe him to be a partner.
(2) In the absence of any usage or custom of trade or express authority
to act for the firm, a partner is not an agent of the firm or his other partners to
(a) submit a dispute relating to the business of the firm to arbitration;
(b) open a banking account on behalf of the firm in his own name;
(c) compromise or relinquish any claim or portion of a claim by the
firm;
(d) withdraw a suit or proceeding filed on behalf of the firm;
(e) admit any liability in a suit or proceeding against the firm:
(f) acquire immovable property on behalf of the firm;
(g) transfer property belonging to the firm; or
(h) enter into partnership on behalf of the firm.

Partners bound
by acts on
behalf of firm

202. An act or instrument relating to the business of the firm done or

executed in the firm name, or in any other manner showing an intention to bind
the firm, by any person thereto authorised, whether a partner or not, is binding
on the firm and all the partners:

42

Provided that nothing in this section shall affect any general rule of law
relating to the execution of deeds or negotiable instruments.
Liability of
partners for
debts

203. Every partner is liable for all debts and obligations incurred
while he is a partner in the usual course of business by or on behalf of the
partnership.

Liability for
wrongs and
misapplication

204. Every partner is liable to make compensation to third persons in

respect of loss or damage arising or any penalty incurred
(a) by any wrongful act or omission of any partner acting in the
ordinary course of business of the firm, or with the authority of
the other partners;
(b) by any misapplication of any money or property received by a
partner acting within the scope of his apparent authority;
(c) by any misapplication by one or more of the partners of money or
property received by the firm in the course of its business while in
the custody of the firm.

Improper
employment of
trust property
for partnership
purposes

205. If a partner, being a trustee, improperly employs trust property in

the business or on account of the partnership, no other partner is liable for the
trust property to the persons beneficially interested therein:
Provided that
(a) this section shall not affect any liability incurred by any partner by
reason of his having notice of a breach of trust;
(b) nothing in this section shall prevent trust money from being
followed and recovered from the firm if still in its possession or
under its control.

Persons liable
by holding out

206. Every one who by words spoken or written or by conduct

represents himself, or who knowingly suffers himself to be represented, as a
partner in a particular firm, is liable as a partner to any one who has on the
faith of any such representation given credit to the firm, whether the
representation has or has not been made or communicated to the person so
giving credit by or with the knowledge of the apparent partner making the
representation or suffering it to be made:
Provided that where, after a partner's death, the partnership business is
continued in the old firm's name, the continued use of that name or of the
deceased partner's name as part thereof shall not of itself make his executors'
or administrators' estate or effects liable for any partnership debts contracted
after his death.

Notice to partner
to be notice to
firm

207. Notice to any partner who habitually acts in the partnership

business of any matter relating to partnership affairs operates as notice to the
firm, except in the case of a fraud on the firm committed by or with the consent
of that partner.

43

Liabilities of
incoming and
outgoing
partners

208.-(1) A person who is admitted as a partner to an existing firm does

not thereby become liable to the creditors of the firm for anything done before
he became a partner.
(2) A partner who retires from the firm does not thereby cease to be
liable for partnership debts or obligations incurred before his retirement.
(3) A retiring partner may be discharged from any existing liabilities by
an agreement to that effect between himself and the members of the firm as
newly constituted and the creditors, and this agreement may be either express
or implied as a fact from the course of dealing between the creditors and the
firm as newly constituted.

Revocation of
continuing
guarantee by
change in firm

209. A continuing guarantee, given either to a firm or to a third person,

in respect of the transactions of a firm, is, in the absence of agreement to the
contrary, revoked as to future transactions by any change in the constitution of
the firm to which, or in respect of the transactions of which, such guarantee
was given.

Rights of
assignee of
share in
partnership

210.-(1) An assignment by any partner of his share in the partnership,

either absolute or by way of mortgage or redeemable charge, does not, as
against the other partners, entitle the assignee, during the continuance of the
partnership, to interfere in the management or administration of the partnership
business or affairs or to require any accounts of the partnership transactions or
to inspect the partnership books, but entitles the assignee only to receive the
share of profits to which the assigning partner would be otherwise entitled, and
the assignee must accept the account of profits agreed to by the partners.
(2) In the case of a dissolution of the partnership, whether as respects
all the partners or as respects the assigning partner, the assignee is entitled to
receive the share of the partnership assets to which the assigning partner is
entitled as between himself and the other partners, and, for the purpose of
ascertaining that share, to an account as from the date of dissolution.

Minors not
competent to be
partners

211. A person who is a minor according to the law to which he is

subject is not competent to be a partner in a firm.
Dissolution of Partnership and its Consequences

Dissolution by
expiration or
notice

212.-(1) Subject to any agreement between the partners, a partnership is

dissolved
(a) if entered into for a fixed term, by the expiration of that term;
(b) if entered into for a single venture or undertaking, by the
termination of that venture or undertaking;
(c) if entered into for an undefined time, by the partner giving notice
to the other or others of his intention to dissolve the partnership.
(2) Where a partnership is dissolved by notice under paragraph (c) of
subsection (1), the partnership is dissolved as from the date mentioned in the

44

notice as the date of dissolution, or, if no date is so mentioned, as from the date
of the communication of the notice.
Dissolution by
death,
bankruptcy or
charge
Cap.33

213.-(1) Subject to any agreement between the partners, a partnership is

dissolved as regards all the partners by the death or bankruptcy of any partner.
(2) A partnership may, at the option of the other partners, be dissolved
if any partner suffers his share of the partnership property to be charged under
rule 48 of Order 21 of the First Schedule to the Civil Procedure Code

Dissolution by
illegality of
partnership

214. A partnership is in every case dissolved by the happening of any

event which makes it unlawful for the business of the firm to be carried on or
for the members of the firm to carry it on in partnership.

Dissolution by
court

215. On application by a partner, the court may decree a dissolution of

the partnership in any of the following cases
(a) when a partner becomes of unsound mind;
(b) when a partner becomes incapable of performing his part of the
partnership contract;
(c) when a partner, other than the partner suing, has been guilty of
such conduct as, in the opinion of the court, regard being had to
the nature of the business, is calculated to prejudicially affect the
carrying on the business;
(d) when a partner, other than the partner suing, wilfully and
persistently commits a breach of the partnership agreement, or
otherwise so conducts himself in matters relating to the
partnership business that it is not reasonably practicable for the
other partner or partners to carry on the business in partnership
with him;
(e) when the business of the partnership can only be carried on at a
loss;
(f) whenever in any case circumstances have arisen which, in the
opinion of the court, render it just and equitable that the
partnership be dissolved.

Rights of
persons against
apparent
members of the
firm

216.-(1) When a person deals with a firm after a change in its

constitution, he is entitled to treat all apparent members of the old firm as still
being members of the firm until he has notice of the change.
(2) An advertisement in the Gazette shall be notice as to persons who
had no dealings with the firm before the date of the dissolution or change so
advertised.
(3) The estate of a person who dies, or who becomes bankrupt, or of a
partner who, not having been known to the person dealing with the firm to be a
partner, retires from the firm, is not liable for partnership debts contracted after
the date of the death, bankruptcy or retirement respectively.

45

Partners' right to
notice of
dissolution

217. On the dissolution of a partnership or retirement of a partner, any

partner may notify the same, and may require the other partner or partners to
concur for that purpose in all proper and necessary acts, if any, which cannot
be done without his or their concurrence.

Continuance of
rights and
liabilities of
partners after
dissolution

218. After the dissolution of a partnership, the rights and obligations of

the partners continue in all things necessary for winding up the business of the
partnership, and to complete transactions begun but unfinished at the
dissolution, but not otherwise:
Provided that the firm is in no case bound by the acts of a partner who
has become bankrupt; but this proviso does not affect the liability of any
person who has, after the bankruptcy, represented himself or knowingly
suffered himself to be represented as a partner of the bankrupt.

Rights of
partners as to
application of
partnership
property

219. On the dissolution of a partnership, every partner is entitled, as

against the other partners in the firm, and all persons claiming through them in
respect of their interests as partners, to have the property of the partnership
applied in payment of the debts and liabilities of the firm, and to have the
surplus assets after such payment applied in payment of what may be due to
the partners respectively after deducting what may be due from them as
partners to the firm; and for that purpose any partner or his representatives
may, on the termination of the partnership, apply to the court to wind up the
business and affairs of the firm.

Apportionment
of premium
where
partnership
prematurely
dissolved

220. Where one partner has paid a premium to another on entering

into a partnership for a fixed term, and the partnership is dissolved before the
expiration of that term otherwise than by the death of a partner, the court may
order the repayment of the premium, or of such part thereof as it thinks just,
having regard to the terms of the partnership contract and to the length of time
during which the partnership has continued unless
(a) the dissolution is, in the judgment of the court, wholly or chiefly
due to the misconduct of the partner who paid the premium; or
(b) the partnership has been dissolved by an agreement containing
provision for a return of the premium or any part thereof.

Rights where
partnership
dissolved for
fraud or
misrepresentation

221. Where a partnership contract is rescinded on the ground of the

fraud or misrepresentation of one of the parties thereto, the party entitled to
rescind is, without prejudice to any other right, entitled
(a) to a lien on the surplus of the partnership assets, after satisfying
the partnership liabilities, for any sum of money paid by him for
the purchase of a share in the partnership and for any capital
contributed by him;
(b) to stand in the place of the creditors of the firm for any payments

46

made by him in respect of the partnership liabilities; and

(c) to be indemnified by the person guilty of the fraud or making the
representation against all the debts and liabilities of the firm.
Right of
outgoing partner
in certain cases
to share profits
made after
dissolution

222. Where any member of a firm has died or otherwise ceased to be

a partner, and the surviving or continuing partners carry on the business of the
firm with its capital or assets without any final settlement of accounts as
between the firm and the outgoing partner or his estate, then, in the absence of
any agreement to the contrary, the outgoing partner or his estate is entitled at
the option of himself or his representatives to such share of the profits made
since the dissolution as the court may find to be attributable to the use of his
share of the partnership assets, or to interest at the rate of five per centum per
annum on the amount of his share of the partnership assets:
Provided that where by the partnership contract an option is given to
surviving or continuing partners to purchase the interest of a deceased or
outgoing partner, and that option is duly exercised, the estate of the deceased
partner, or the outgoing partner or his estate, as the case may be, is not entitled
to any further or other share of profits; but if any partner assuming to act in
exercise of the option does not in all material respects comply with the terms
thereof, he is liable to account under the foregoing provisions of this section.

Retiring or
deceased
partner's share to
be a debt

223. Subject to any agreement between the partners, the amount due
from surviving or continuing partners to an outgoing partner or the
representatives of a deceased partner in respect of the outgoing or deceased
partner's share is a debt accruing at the date of the dissolution or death.

Rule for
distribution of
assets on final
settlement of
accounts

224. In settling accounts between the partners after a dissolution of

partnership, the following rules shall, subject to any agreement, be observed
(a) losses, including losses and deficiencies of capital, shall be paid
first out of profits, next out of capital, and lastly, if necessary, by
the partners individually in the proportion in which they were
entitled to share profits;
(b) the assets of the firm including the sums, if any, contributed by
the partners to make up losses or deficiencies of capital, shall be
applied in the following manner and order
(i)
in paying the debts and liabilities of the firm to persons
who are not partners therein;
(ii)
in paying to each partner rateably what is due from the
firm to him for advances as distinguished from capital;
(iii) in paying to each partner rateably what is due from the
firm to him in respect of capital;
(iv)
the ultimate residue, if any, shall be divided among the
partners in the proportion in which profits are divisible.

Payment of firm
debts and of
separate debts

225. Where there are joint debts due from the firm, and also separate
debts due from any partner, the property of the firm shall be applied in the first

47

instance in payment of the debts of the firm, and if there is any surplus, then
the share of each partner shall be applied in payment of his separate debts or
paid to him; the separate property of any partner shall be applied first in the
payment of his separate debts, and the surplus (if any) in the payment of the
debts of the firm.
Incorporated
partnerships and
joint-stock
companies

226. Extraordinary partnerships, such as incorporated partnerships

and joint-stock companies, shall be regulated by the law for the time being in
force relating thereto.
PART XII
REPEAL AND TRANSITIONAL PROVISIONS

Disapplication
of the Indian
Contract Act
and amendment
of R.L. Cap. 2
Transitional
provisions

227. [Disapplication of the Indian Contract Act, and amendment of

R.L. Cap. 2.]

228.

[Transitional provisions.]

48